J, Ad v The Queen

The appeal concerned the sentencing of the appellant, J, Ad, by a judge of the Supreme Court of South Australia. The appellant had been convicted of sexual offences. The appeal was brought on the grounds that the sentence imposed was manifestly excessive.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed was so high that it constituted a manifest excess, justifying appellate intervention. This required the court to consider the principles governing appeals against sentence, particularly the threshold for finding a sentence to be manifestly excessive.

The court noted that to interfere with a sentence on the grounds of manifest excess, it must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. The court also considered the possibility of factual errors made by the sentencing judge in summarising the circumstances of the offending. While the judge made two factual errors in referring to uncharged acts, the Director submitted these were minor and that the judge did not impermissibly increase the sentence on account of them. However, the court expressed difficulty with this submission, noting the judge's express reference to uncharged acts and confusion regarding the occasions on which certain acts occurred, without subsequently abjuring reliance on them or explaining their use in sentencing. Despite these concerns, the court concluded that even if the judge had impermissibly had regard to the uncharged acts, no different sentence should have been imposed.

Permission to appeal was granted on the second ground, but the appeal itself was dismissed.